Court File and Parties
COURT FILE NO.: FC-15-2180 HEARD: 2016/06/10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ZEINA SALAME – Applicant v. MASSOUD ANDRAOS MASSOUD - Respondent
BEFORE: Madam Justice Liza Sheard
COUNSEL: Pauline El-Tenn, counsel for the Applicant mother Gonen Snir, counsel for the Respondent father
HEARD: By Written Submissions
Costs Endorsement
SHEARD J.
[1] On February 9, 2016 I rendered my decision on the Respondent father’s motion for an order that this Court decline jurisdiction to determine the issues of custody and access with respect to the two children of the marriage, Andrew Massoud born July 13, 2006 and Allison Massoud born September 10, 2007.
[2] For the reasons set out in my Endorsement released February 19, 2016, I determined that this Court did not have jurisdiction under the Children’s Law Reform Act, R.S.O. 1990, c. C.12. The Respondent father also sought an order for the two children to be returned to Lebanon pursuant to the ex parte court order made in Lebanon on October 5, 2015. I decline to make that order.
[3] As set out at para. 79 of my Endorsement of February 19, 2016, the Respondent father had a mixed result on the motion. Although he did succeed in his motion that this Court decline jurisdiction, he did not succeed in obtaining an order requiring the children be returned to Lebanon.
[4] As at the date of the motion, the children had been living in Canada with their mother since September 7, 2015. The children had been born in Canada and had lived there with their parents and, after the father moved to Lebanon, with their mother until July 2014.
[5] As set out at para. 78 of my Endorsement dated February 19, 2016, it appeared to me that it would be possible for a court that had jurisdiction to determine that it was in the best interests of the children that they remain living with their mother in Canada. Given the father’s mixed success on the motion, I invited the parties to try and resolve the issue of costs, failing which they could submit written costs submissions to me.
[6] I have received written costs submissions from both parties. The Respondent father sought costs of the motion of $13,991.28 which included HST and disbursements. In his costs submissions the father asked for a total $14,330, which would cover the cost of the motion determined by me and of the procedures “imposed on the father by the wrongful doing of the Applicant who abducted his children from Lebanon to Ottawa…”
[7] I understand the rationale behind the Respondent father’s request for costs of the whole proceeding: this Court having declined jurisdiction over the matter, there is nothing left to be determined by this Court. However, I find that the amount claimed by the Respondent father to be excessive in the circumstances.
[8] In her submissions, the Applicant mother argued that there was divided success and, accordingly, each party should bear his or her own costs.
[9] In my Endorsement dated February 19, 2016 at para. 35, I found that the only reason the children were in Ontario was as a result of the mother’s secreting them out of Lebanon without the knowledge or consent of the Respondent father.
[10] I also made a finding that the grounds set out in the father’s ex parte order obtained in Lebanon were concerning, it would not be fair or just to deprive him of costs on that basis alone. Further, in addition to having removed the children from Lebanon without the Respondent father’s knowledge or consent, the Applicant mother proceeded to obtain an ex parte order in this Court which had failed to disclose that she was aware of the Respondent father’s application for custody of the children in Lebanon and, in fact, had retained her own lawyer in that Country to respond to that application. For that reason and the fact that the father was successful in obtaining an order that this Court decline jurisdiction, he is entitled to costs.
[11] Rule 24 of the Family Law Rules, O. Reg. 114/99 sets out the various factors to be considered in determining costs. Those factors include the importance, complexity or difficulty of the issues. The facts in this case were not difficult but the application of the law to those facts was more complicated and difficult than is typical for family motions. Further, the complexity was compounded by the logistics of the fact that the Respondent father lives in Lebanon and that his affidavit material had to be translated from Arabic to English for the use in this Court.
[12] I must also consider the reasonableness or unreasonableness of each party’s behavior in the case. Despite that I found that this Court does not have jurisdiction to determine the issues, given all of the circumstances; the fact that Lebanon is not a Hague Convention Country; the reasonable concern or fear of the Applicant mother that the tribunal in Lebanon might not grant her a full and fair hearing on the issues of custody and access; her actions may not have been unreasonable.
[13] I must also take into consideration the fact that the Respondent father had full-time employment in Lebanon and was supporting the Applicant mother while they lived together in Lebanon. Since her return to Canada with the children, the Applicant mother had to live with family and works only part-time. As at the date of the motion, she had received no support from the Respondent father for herself or for the children. Further, although this Court does not condone the Applicant mother’s conduct, it does note that she did not have sufficient funds of her own with which to purchase airline tickets or to return to Canada. Therefore, this Court must take into consideration the impact of any costs award upon the children who, as at the last court appearance, were living with the Applicant mother.
[14] As at the hearing of this motion, the Applicant mother had had de facto custody of the children from September to February 2016 with no support from the Respondent father. Accordingly, I am concerned that a significant costs award against the Applicant mother would have a negative impact upon the children who were in her care.
[15] Finally, I find the amount being sought in legal fees to be excessive and, to the extent they relate to matters other than this motion, are outside the scope of this costs award.
[16] In consideration of the above, I award the Respondent father costs of the motion in the amount of $5,000 together with his disbursements of $188.00 and HST on those amounts. In addition, I award $448.80 which is the amount incurred to translate his documents from Arabic to English as set out at para. 22 of the Respondent father’s costs submissions.